The Jurisprudence of Yogi Berra

The Jurisprudence of Yogi Berra

Source: Brian Costello, Esq., Loyola Law School, Los Angeles 

The late Yankee baseball player Yogi Berra’s way with words reached all the way to legal academia.

In 1997, a group of Loyola Law School, Los Angeles, professors contributed to a law review article The Jurisprudence of Yogi Berra which promised to "examine Yogi's wisdom and demonstrate the parallels between judges' and legislators' comments and what Yogi said - only Yogi said it better." 

The authors included Professors Jan Costello, Bryan Hull, Laurie Levenson, Samuel Pillsbury, Katie Pratt, Ted Seto, Georgene Vairo and Gary Williams.

The law review article is available on the Internet at:

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1707&context=facpubs

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Gonzalez v City of the New York, 2015 NY Slip Op 06869, Appellate Division, First Department

This action arose from the shooting death of Shirley Fontanez by her boyfriend, a New York City Police Officer, Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleged that numerous complaints were made to the City of New York concerning Maselli's abusive conduct toward Fontanez and her daughter, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez's wrongful death.

Although Supreme Court granted the City’s motion for summary judgment dismissing the action on the ground that any negligence on City's part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez's death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment, the Appellate Division disagreed and said that the dispositive issue that to be resolved was whether the fact that the police officer was off duty when he committed the fatal shooting breaks any connection, as a matter of law, between the fatal injuries and the employer's alleged negligence regarding an employee with violent propensities.

The Appellate Division found that under the circumstances, this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities. When such questions of breach of duty and proximate cause exist, summary judgment is not proper. These questions of fact, said the court, must be reserved for the jury.

In its analysis of the relevant law involved, the Appellate Division noted, in part, the following:

1. Citing Haddock v City of New York, 75 NY2d 478, the court said that in this case the alleged duty owed to plaintiff stems from New York's long recognized tort of negligent hiring and retention and this tort applies equally to municipalities and private employers.

2. Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment in contrast to employer liability under legal doctrine of "respondeat superior," where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee's duties or in furtherance of the employer's interests.

Here, said the court, the alleged breach of duty stems from the claim that during the Maselli’s employment with the City, the City became aware or should have become aware of problems with the police officer that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that Fontanez's damages were caused by the City's negligent retention, or supervision of Maselli. The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.

3. New Yorkcourts have held governmental employers liable for placing employees, like police officers who are known to be violent, in positions in which they can harm others.

4. The torts of negligent retention and supervision of governmental employees with dangerous propensities do not specifically require allegations that the employees' misconduct occur within the course and scope of the employment. Rather, what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance.

The Appellate Division said that in its view, both the type of harm that occurred and the person upon whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law and it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.

Finally, the Appellate Division said it was aware of the fact that all police personnel involved in this case have adamantly denied ever receiving even a single complaint about Maselli’s alleged violent propensities. In contrast, said the court, Plaintiff Gonzalezhas presented evidence that the City was informed on numerous occasions, prior to the fatal shooting, about Maselli’s abusive conduct toward Fontanez and her daughter.

Under the circumstances, the Appellate Division ruled that this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities.

When such questions of breach of duty and proximate cause exist, summary judgment is not proper. Reversing the ruling of the Supreme Court, the Appellate Division held that “[T]hese questions of fact must be reserved for the jury and Supreme Court should not have granted the City's motion for summary judgment on the issue of proximate cause.”

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_06869.htm

Employee deferred compensation plan proposals requested

Employee deferred compensation plan proposals  requested

Source: New York State Register dated September 23, 2015

The Town of Lyons is requesting proposals from qualified administrative services agencies and, or, financial organizations relating to administration, trustee services and, or, funding of a deferred compensation plan for employees of The Town of Lyons meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

A copy of the proposal questionnaire may be obtained from the Town of Lyons Town Clerk,  Sal Colatarci, 43 Phelps St., Lyons, NY 14489. Telephone: (315) 946-6252 (ext. 10) or e-mail the Town at  e-mail: townofly@rochester.rr.com

All proposals must be submitted no later 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

Munroe v Central Bucks School District, United States Court of Appeals, Third Circuit, Docket #14-3509

It is well settled that “Public employees do not surrender all of their First Amendment rights merely because of their employment status. Thus a public employer may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." As the United States Supreme Court commented in Pickering v Board of Education, 391 U.S. 563* “Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment.”

When the Central Bucks School District, a school district in Pennsylvania [Respondent] terminated Natalie Monroe [Teacher] from her teaching position, she sued the District alleging “First Amendment retaliation.” Teacher contended that her dismissal resulted from her making a number of derogatory comments about her own students on her personal Internet blog. In its defense, one Respondent witness testified that Teacher’s blog entries concerning the school and her students that “To say it was a disruption to the learning environment is an understatement.”

The United States District Court for the Eastern District of Pennsylvania granted the Respondent’s motion for summary judgment, holding that in its opinion Respondent had not violate Teacher’s constitutional right to free expression based on its determination that “as a matter of law that [Teacher’s] comments do not merit protection under the balancing test established by [Pickering and thus] ”it believed it was unnecessary to reach the question of whether [Teacher’s] speech directly caused her termination.”

Teacher appealed but the U.S. Circuit Court of Appeals, Third Circuit, sustained the district court’s ruling, holding that applying the Pickering balancing test, “[Teacher's] speech did not rise to the level of constitutionally protected expression.”

The court said that "the [public employer] has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general" and "the government as employer" possesses "far broader powers than does the government as sovereign."

The Circuit Court’s decision pointed out that should a person enter government service, he or she by necessity must accept certain limitations on his or her freedom as government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Thus, said the Circuit Court, a public employer may impose speech restrictions that are necessary for efficient and effective operations but where employees are speaking as citizens about matters of public concern, they face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Accordingly, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern.”

As to Teacher’s speech, the Circuit Court said that assuming that her speech “implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment.” Further, said the court, “even if [Teacher's] speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of [Respondent].”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” is posted on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www2.ca3.uscourts.gov/opinarch/143509p.pdf

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/doc/14-1993_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/hilite/